United States District Court, D. Connecticut
RULING ON PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Santiago Vera (“Petitioner”) filed a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. On October 27, 2006, a jury convicted Mr. Vera of
(1) conspiracy to possess with the intent to distribute
heroin, in violation of 21 U.S.C. §§ 846 and
841(a)(1); and (2) possession of heroin with intent to
distribute, and aiding and abetting of the same, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The Second
Circuit affirmed the conviction on direct appeal, United
States v. Vera, 362 Fed.App'x. 199 (2d Cir. Jan. 27,
2010), and the United States Supreme Court denied his
petition for certiorari review. Vera v. United
States, 130 S.Ct. 3341 (2010).
Vera puts forth seven separate claims for ineffective
assistance of counsel and violation of his constitutional
rights. For the reasons set forth below, Mr. Vera's
motion is DENIED.
Factual and Procedural Background
Pretrial and Trial Proceedings
August 2, 2005, a grand jury in New Haven indicted Mr. Vera
and twenty-four other individuals and charged them with
various narcotics offenses. See Indictment in 3:05-
cr-00195-MRK, ECF No. 18. After Mr. Vera's August 22,
2005 arraignment, Mr. Peter J. Schaffer, Esq., a member of
the District's CJA panel, represented him.
February 8, 2006, Mr. Schaffer filed a motion to sever Mr.
Vera's trial from his co-defendants who were charged with
cocaine possession, but did not move to sever Mr. Vera's
trial from co-defendant Eduardo Casiano specifically.
See Mot. to Sever in 3:05-cr-00195-MRK, ECF No. 488.
This Court denied this motion as moot on September 28, 2006,
after several co-defendants entered guilty pleas.
See Order in 3:05-cr-00195-MRK, ECF No. 861.
Schaffer then withdrew from representing Mr. Vera and Mr.
Todd Bussert, Esq., assumed the role of Mr. Vera's
counsel. See ECF No. 715 in 3:05-cr-00195-MRK.
Eventually, all defendants pled guilty, except Mr. Casiano
and Mr. Vera. The Court tried Mr. Vera and Mr. Casiano
jointly. At trial, Mr. Vera claimed that he was innocent of
any heroin charges because he only supplied Mr. Casiano with
marijuana. Mr. Casiano did not testify.
October 27, 2006, the jury found Mr. Vera guilty of
conspiracy to possess with intent to distribute 100 grams or
more of heroin and possession with intent to distribute 100
grams of heroin. The jury also found Mr. Casiano guilty.
See Jury Verdicts, ECF No. 918-19 in
Vera appeared for sentencing on March 21, 2007. See
Joint Mot., ECF No. 1146 in 3:05-cr-00195-MRK. The United
States (the “Government”) presented evidence in
support of its recommended sentence, but the Court did not
sentence Mr. Vera on that day. Id. at 2.
the jurors who had found Mr. Vera and Mr. Casiano guilty
attended the March 21st hearing. Id. On March 30,
the Court received a letter from that juror, which it
distributed to both defendants and the Government. See
id. at 2 (citing Letter, Ex. 1). The letter stated:
Had I been a jury of one, after the conclusion of the
evidence, Mr. Vera would have been not guilty and Mr. Casiano
would have been guilty of conspiracy to distribute and/or
sell under 500 grams of heroin. During deliberations, after
discussion of the instructions, unanimous verdicts were
Id. The juror also expressed disappointment with Mr.
Vera's guidelines sentencing range and the
Government's evidence at the sentencing hearing.
Casiano and Mr. Vera jointly moved for the Court to conduct
an in camera inquiry of the juror, arguing that the
“tone and tenor [of the letter] call the validity of
the verdict into question.” Joint Mot., 2. The Court
denied the motion, concluding that “[i]n short, there
are no circumstances suggested by Juror # 2's letter that
would permit any legitimate inquiry of any juror under Rule
606(b) or relevant case law.” See Order in
3:05-cr-00195-MRK ECF No. 1168, 7.
Vera's sentencing proceedings continued at a hearing on
April 9, 2007. At the hearing, Mr. Bussert revealed that his
predecessor counsel had received a letter from Mr.
in which he sought to exculpate Mr. Vera on the heroin
charge. Specifically, Mr.
MR. BUSSERT: Mr. Vera will be speaking, and I wanted to say
[that] I advised him that I would do this, my customary
practice is to have some sense going in what the client wants
to say, particularly in a situation like this, where any
comments that Mr. Vera might make could potentially
jeopardize his appellate rights, I don't know
specifically what he's going to say and so if the Court
wants to remind him as well, that would be welcome.
THE COURT: Yes, I would like to do that.
MR. BUSSERT: He will speak in a moment, I believe. …
[B]efore I get to my comments, [Mr. Vera] wanted me to note
for the record that Mr. Casiano had actually sent a letter
to Peter Schaffer, I believe Mr. Schaffer was still Mr.
Vera's trial counsel, that was forwarded to me, generally
stating that Mr. Vera was not involved in any of the alleged
activities and supporting his innocence. We just wanted to
say that for the record.
Id. at 33-34.
letter itself was never entered into evidence. In a
declaration dated February 28, 2012, Mr. Bussert indicated
that, while he did not recall receiving the letter from Mr.
Casiano, he would not have called him as a witness, assuming
availability, as a matter of strategy. Dec. of Todd A.
Bussert, ECF No. 26, at 2-3. Specifically, Mr. Bussert
Even if I had possessed a letter from Mr. Casiano . . . I do
not believe I would have called Eduardo Casiano to testify
for the defense, assuming arguendo that he was an available
witness . . . . Given my familiarity with the
government's evidence, most notably the Title III
intercepts of Mr. Casiano's telephone, I do not believe
that Mr. Casiano would have presented as a credible witness.
If anything, calling Mr. Casiano to testify would have risked
undermining Mr. Vera's defense inasmuch as it would have
afforded government's counsel the opportunity to
cross-examine Mr. Casiano and have him elucidate on calls
between him and Mr. Vera which, from my perspective, were
vague and nonspecific (i.e., they did not refer directly to
heroin) and, therefore, [were] helpful (or, at least, not
overtly detrimental) to the defense['s theory of the
time of sentencing, the Court found that the offense involved
at least 700 grams, but less than one kilogram, of heroin,
which resulted in a base offense level of 30 under the United
States Sentencing Guidelines, specifically USSG 2D1.1(c)(5).
See Transcript, Ex. 1 to Amend. Pet. Writ Hab.
Corp., ECF No. 28-1, 58:11-15. The Court decided that no
other adjustments were appropriate. Id. The Court
then determined that Mr. Vera's criminal history category
was IV, which resulted in a guideline imprisonment range of
135 to 168 months. See Ruling Granting Mot. in
3:05-cr-00195-MRK, ECF No. 1514. The Court sentenced Mr. Vera
to a term of 160 months of incarceration, which was within
the Sentencing Guidelines range. Id.
February 20, 2015, Mr. Vera moved to reduce his sentence
under 18 U.S.C. § 3582(C)(2). Mot. in 3:05-cr-00195-MRK,
ECF No. 1511. On March 25 of that year, the Court granted Mr.
Vera's motion and reduced his term of imprisonment to 130
months. See Ruling Granting Mot. in
3:05-cr-00195-MRK. On November 2, 2015, the Bureau of Prisons
released Mr. Vera from its custody. See Fed. Bureau
Prisons, Inmate Locator Service, available at
https://www.bop.gov/inmateloc/ (last visited June 3,
Mr. Vera's Habeas Petition
25, 2011, Mr. Vera, proceeding pro se, filed a
timely motion to vacate, set aside, or correct his sentence
(“habeas petition”). See Motion and
Memorandum of Law in Fact In Support of Title 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence, ECF
No. 1-2. Mr. Vera claimed that: (1) his appellate counsel was
ineffective by “fail[ing] to challenge the sufficiency
and accuracy of [the trial] transcript;” (2) his
appellate counsel was ineffective by “fail[ing] to
challenge the district court's drug quantity
finding[s];” (3) both his trial and appellate counsel
were ineffective by “fail[ing] to file a motion for new
trial . . . where the district court received a letter from a
juror stat[ing] that had the juror been a juror of one she
would have acquitted Mr. Vera;” (4) the Government
violated his constitutional rights by failure to comply with
its obligations under 18 U.S.C. § 3500 (the
“Jencks Act”); (5) both his trial and appellate
counsel were ineffective by “fail[ing] to file a motion
for new trial, on the basis of newly discovered evidence, . .
. [involving the receipt of] a letter from Eduardo
Casiano” exculpating Mr. Vera; (6) both his trial and
appellate counsel were ineffective by not challenging the
sufficiency of the evidence adduced at trial; and (7) both
his trial and appellate counsel were ineffective by failing
to claim that Mr. Vera received an unduly harsh sentence as
retaliation for his decision to stand trial. See id.
Vera then requested the Court to appoint counsel.
See Mot. Appoint Counsel, ECF No. 5. The Court
appointed Gary Weinberger, Esq. See Order, ECF No.
8. Mr. Weinberger, on behalf of Mr. Vera, moved to
amend the fifth of his seven claims. See Motion, ECF
No. 14. After the motion was granted, Mr. Vera filed an
Amended Petition for Writ of Habeas Corpus, dated January 3,
2012. See Order, ECF No. 15. In this petition, Mr.
Vera “amend[ed] claim 5 of his previous petition to
allege that his trial counsel was ineffective by failing to
file a motion for severance under Federal Rule of Criminal
Procedure 14 from Eduardo Casiano on the basis of Mr.
Casiano's willingness, as evidenced by his letter, to
exculpate Mr. Vera.” Amend. Pet. Writ Hab. Corp., ECF
No. 28, at 2. Mr. Weinberger took no position on the merit of
the six remaining claims, but noted that none appeared to him
to warrant either an evidentiary hearing or the appointment
of counsel. Id. Mr. Weinberger withdrew as counsel
for the remaining six claims and left Mr. Vera to pursue them
pro se. Id.
letter dated April 12, 2013, Mr. Vera wrote to the Clerk of
the Court seeking termination of Mr. Weinberger and the
appointment of new counsel. See Mot. to Withdraw,
ECF No. 29. Mr. Weinberger then moved to be relieved of
representation on April 23, 2013. Id. In his motion,
Mr. Weinberger reiterated his belief that Mr. Vera's six
remaining claims did not appear to warrant an evidentiary
hearing. Id. at 2.
moved to withdraw, Mr. Weinberger addressed Mr. Vera's
fifth claim. Id. He explained that this claim
“seem[ed] doomed to fail regardless of the conducting
of an evidentiary hearing, ” because even if Mr. Vera
could establish that his trial attorney received the letter
and was ineffective in failing to move to sever Mr.
Vera's case from Mr. Casiano's, he would not be able
to show that the decision would be reasonably likely to
change the outcome of Mr. Vera's case. Mot. to Withdraw,
6-7. Mr. Weinberger noted that he was therefore in full
accordance with Mr. Vera's desire to terminate him as
counsel in ...